RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 15 February 2005
DOCKET NUMBER: AR20040001357
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Mr. Michael J. Fowler | |Analyst |
The following members, a quorum, were present:
| |Ms. Jennifer L. Prater | |Chairperson |
| |Mr. Thomas A. Pagan | |Member |
| |Mr. Kenneth W. Lapin | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that her dishonorable discharge be upgraded to a
general (under honorable conditions) discharge.
2. The applicant makes no additional statement.
3. The applicant provides a DD Form 214 (Certificate of Release or
Discharge from Active Duty) with an ending date of 13 November 2002.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 28 March 1989 and
successfully completed basic training and advanced individual training.
She was awarded military occupational specialty 63S (Heavy Wheeled Vehicle
Mechanic).
2. On 4 September 1997, the applicant was convicted contrary to her plea
by a general court-martial for involuntary manslaughter (she left her nine
month old daughter unattended in the bathtub and the baby drowned). Her
sentence consisted of a reduction to the grade of private/pay grade E-1, a
forfeiture $900.00 for twenty-four months, confinement for thirty months,
and a dishonorable discharge.
3. On 22 April 1999, the applicant appealed her case to the United States
Army Court of Criminal Appeals (USACCA). Among other issues raised by her
appellate counsel she personally stated in her appeal that her defense
counsel was ineffective because he did not call a witness on her behalf.
She further stated that a Special Agent at her trial was not a credible
witness because the Special Agent's statement should have been suppressed
during the trial.
4. On 10 August 2000, the USACCA considered the applicant's appeal and
determined that there was no merit or basis to set aside the conviction and
sentence and that the applicant suffered no prejudice from the sentence.
The USACCA affirmed the finding of guilty and the sentence.
5. Headquarters, U.S. Army Field Artillery Center and Fort Sill, General
Court-Martial Order Number 149, dated 16 July 2002 directed that the
Dishonorable Discharge be executed.
6. On 13 November 2002, the applicant was dishonorably discharged. She
had completed 11 years, 9 months, and 4 days of creditable active military
service with 672 days of lost time due to confinement.
7. In accordance with Title 10 of the United States Code, section 1552,
the authority under which this Board acts, the Army Board for Correction of
Military Records is not empowered to set aside a conviction. Rather it is
only empowered to change the severity of the sentence imposed in the court-
martial process and then only if clemency is determined to be appropriate.
Clemency is an act of mercy, or instance of leniency, to moderate the
severity of the punishment imposed.
DISCUSSION AND CONCLUSIONS:
1. The applicant's trial by court-martial was warranted by the gravity of
the offense for which she was charged and convicted. Conviction and
discharge were effected in accordance with applicable law and regulations,
and the discharge appropriately characterizes the misconduct for which she
was convicted.
2. By law, the Army Board of Correction for Military Records may not
disturb the finality of a court-martial. The Board is only empowered to
change a discharge if clemency is determined to be appropriate to moderate
the severity of the punishment imposed.
3. The applicant's entire record of service was considered in this case.
However, given the seriousness of the offense for which she was convicted,
it is determined that clemency is not warranted in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__JLP___ __TAP___ __KWL__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable
error or injustice. Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.
____ Ms. Jennifer L. Prater_
CHAIRPERSON
INDEX
|CASE ID |AR20040001357 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |15 February 2005 |
|TYPE OF DISCHARGE |DD |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. |Mr. Chun |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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